HB946

SECTION 1. Chapter 431, Hawaii Revised Statutes, is amended by adding a new article to be appropriately designated and to read as follows:

"ARTICLE A

INSURANCE DATA SECURITY LAW

§431:A-A Definitions. As used in this article:

"Authorized individual" means an individual known to and screened by the licensee and determined to be necessary and appropriate to have access to the nonpublic information held by the licensee and its information systems.

"Commissioner" means the insurance commissioner of this State.

"Consumer" means an individual, including, but not limited to, applicants, policyholders, insureds, beneficiaries, claimants, and certificate holders, who is a resident of this State and whose nonpublic information is in a licensee's possession, custody, or control.

"Cybersecurity event" means an event resulting in unauthorized access to, disruption or misuse of, an information system or information stored on that information system. "Cybersecurity event" shall not include:

(1) Unauthorized acquisition of encrypted nonpublic information if the encryption, process, or key is not also acquired, released, or used without authorization; and

(2) An event in which the licensee has determined that the nonpublic information accessed by an unauthorized person has not been used or released and has been returned or destroyed.

"Encrypted" means the transformation of data into a form that results in a low probability of assigning meaning without the use of a protective process or key.

"Information security program" means the administrative, technical, and physical safeguards that a licensee uses to access, collect, distribute, process, protect, store, use, transmit, dispose of, or otherwise handle nonpublic information.

"Information system" means a discrete set of electronic information resources organized for the collection, processing, maintenance, use, sharing, dissemination, or disposition of electronic information, as well as any specialized system such as industrial controls systems, process controls systems, telephone switching and private branch exchange systems, and environmental control systems.

"Licensee" means every licensed insurer, producer, and any other person licensed or required to be licensed, or authorized or required to be authorized, or registered or required to be registered, under chapter 431 or 432, or holding a certificate of authority under chapter 432D. "Licensee" shall not include a purchasing group or a risk retention group chartered and licensed in a state other than this State, or a licensee that is acting as an assuming insurer that is domiciled in another state or jurisdiction.

"Multi-factor authentication" means authentication through verification of at least two of the following types of authentication factors:

(1) Knowledge factors, such as a password;

(2) Possession factors, such as a token or text message on a mobile phone; or

(3) Inherence factors, such as a biometric characteristic.

"Nonpublic information" means information that is not publicly available information and is:

(1) Business-related information of a licensee, whose tampering, unauthorized disclosure, access, or use would cause a material adverse impact to the business, operations, or security of the licensee; or

(2) Any information concerning a consumer which, because of name, number, personal mark, or other identifier, can be used to identify the consumer, in combination with any one or more of the following data elements:

(A) Social security number;

(B) Driver's license number or non-driver identification card number;

(D) Any security code, access code, or password that would permit access to a consumer's financial account; or

(E) Biometric records; or

(3) Any information or data, except age or gender, in any form or medium created by or derived from a health care provider or a consumer and that relates to:

(A) The past, present, or future physical, mental, or behavioral health or condition of any consumer or a member of the consumer's family;

(B) The provision of health care to any consumer; or

"Person" means any individual or any non-governmental entity, including, but not limited to, any non-governmental partnership, corporation, branch, agency, or association.

"Publicly available information" means any information that a licensee has a reasonable basis to believe is lawfully made available to the general public from:

(1) Federal, state, or local government records;

(2) Widely distributed media; or

(3) Disclosures to the general public that are required to be made by federal, state, or local law.

For purposes of this definition, a licensee has a reasonable basis to believe that information is lawfully made available to the general public if the licensee has taken steps to determine:

(1) That the information is of the type that is available to the general public; and

(2) Whether a consumer can direct that the information not be made available to the general public and, if so, that the consumer has not done so.

"Risk assessment" means the risk assessment that each licensee is required to conduct under section 431:A-C.

"State" means the State of Hawaii.

"Third-party service provider" means a person, not otherwise defined as a licensee, that contracts with a licensee to maintain, process, store, or otherwise is permitted access to nonpublic information through its provision of services to the licensee.

§431:A-B Implementation of information security program. Commensurate with the size and complexity of the licensee, the nature and scope of the licensee's activities, including its use of third-party service providers, and the sensitivity of the nonpublic information used by the licensee or in the licensee's possession, custody, or control, each licensee shall develop, implement, and maintain a comprehensive written information security program based on the licensee's risk assessment and that contains administrative, technical, and physical safeguards for the protection of nonpublic information and the licensee's information system.

§431:A-C Objectives of information security program. (a) A licensee's information security program shall be designed to:

(1) Protect the security and confidentiality of nonpublic information and the security of the information system;

(2) Protect against any threats or hazards to the security or integrity of nonpublic information and the information system;

(3) Protect against unauthorized access to or use of nonpublic information, and minimize the likelihood of harm to any consumer; and

(4) Define and periodically reevaluate a schedule for retention of nonpublic information and a mechanism for its destruction when no longer needed.

(b) Regarding risk assessment, the licensee shall:

(1) Designate one or more employees, an affiliate, or an outside vendor designated to act on behalf of the licensee who is responsible for the information security program;

(2) Identify reasonably foreseeable internal or external threats that could result in unauthorized access, transmission, disclosure, misuse, alteration or destruction of nonpublic information, including the security of information systems and nonpublic information that are accessible to or held by third-party service providers;

(3) Assess the likelihood and potential damage of these threats, taking into consideration the sensitivity of the nonpublic information;

(4) Assess the sufficiency of policies, procedures, information systems, and other safeguards in place to manage these threats, including consideration of threats in each relevant area of the licensee's operations, including:

(A) Employee training and management;

(B) Information systems, including network and software design, as well as information classification, governance, processing, storage, transmission, and disposal; and

(5) Implement information safeguards to manage the threats identified in its ongoing assessment, and no less than annually, assess the effectiveness of the safeguards' key controls, systems, and procedures.

§431:A-D Risk management. Based on its risk assessment, the licensee shall:

(1) Design its information security program to mitigate the identified risks, commensurate with the size and complexity of the licensee's activities, including its use of third-party service providers, and the sensitivity of the nonpublic information used by the licensee or in the licensee's possession, custody, or control;

(2) Determine which security measures listed below are appropriate and implement such security measures:

(A) Place access controls on information systems, including controls to authenticate and permit access only to authorized individuals to protect against the unauthorized acquisition of nonpublic information;

(B) Identify and manage the data, personnel, devices, systems, and facilities that enable the organization to achieve business purposes in accordance with their relative importance to business objectives and the organization's risk strategy;

(D) Protect by encryption or other appropriate means, all nonpublic information while being transmitted over an external network and all nonpublic information stored on a laptop computer or other portable computing or storage device or media;

(E) Adopt secure development practices for in-house developed applications used by the licensee and procedures for evaluating, assessing, or testing the security of externally developed applications used by the licensee;

(F) Modify the information system in accordance with the licensee's information security program;

(G) Use effective controls, which may include multi-factor authentication procedures for any individual accessing nonpublic information;

(H) Regularly test and monitor systems and procedures to detect actual and attempted attacks on, or intrusions into, information systems;

(I) Include audit trails within the information security program designed to detect and respond to cybersecurity events and designed to reconstruct material financial transactions sufficient to support normal operations and obligations of the licensee;

(J) Implement measures to protect against destruction, loss, or damage of nonpublic information due to environmental hazards, such as fire and water damage or other catastrophes or technological failures; and

(K) Develop, implement, and maintain procedures for the secure disposal of nonpublic information in any format.

(3) Include cybersecurity risks in the licensee's enterprise risk management process;

(4) Stay informed regarding emerging threats or vulnerabilities and use reasonable security measures when sharing information relative to the character of the sharing and the type of information shared; and

(5) Provide its personnel with cybersecurity awareness training that is updated as necessary to reflect risks identified by the licensee in the risk assessment.

§431:A-E Oversight by board of directors. If the licensee has a board of directors, the board or an appropriate committee of the board shall, at a minimum:

(1) Require the licensee's executive management or its delegates to develop, implement, and maintain the licensee's information security program;

(2) Require the licensee's executive management or its delegates to report in writing at least annually, the following information:

(A) The overall status of the information security program and the licensee's compliance with this article; and

(B) Material matters related to the information security program, addressing issues such as risk assessment, risk management and control decisions, third-party service provider arrangements, results of testing, cybersecurity events or violations and management's responses thereto, and recommendations for changes in the information security program.

(3) If executive management delegates any of its responsibilities under sections 431:A-B through 431:A-I, it shall oversee the development, implementation, and maintenance of the licensee's information security program prepared by the delegate and shall receive a report from the delegate complying with the requirements of the report to the board of directors above.

§431:A-F Oversight of third-party service provider arrangements. A licensee shall:

(1) Exercise due diligence in selecting its third-party service provider; and

(2) Require a third-party service provider to implement appropriate administrative, technical, and physical measures to protect and secure the information systems and nonpublic information that are accessible to or held by the third-party service provider.

§431:A-G Program adjustments. The licensee shall monitor, evaluate, and adjust, as appropriate, the information security program consistent with any relevant changes in technology, the sensitivity of its nonpublic information, internal or external threats to information, and the licensee's own changing business arrangements, such as mergers and acquisitions, alliances and joint ventures, outsourcing arrangements, and changes to information systems.

§431:A-H Incident response plan. (a) As part of its information security program, each licensee shall establish a written incident response plan designed to promptly respond to and recover from any cybersecurity event that compromises the confidentiality, integrity, or availability of nonpublic information in its possession, the licensee's information systems, or the continuing functionality of any aspect of the licensee's business or operations.

(b) The incident response plan shall address the following areas:

(1) The internal process for responding to a cybersecurity event;

(2) The goals of the incident response plan;

(3) The definition of clear roles, responsibilities, and levels of decision-making authority;

(4) External and internal communications and information sharing;

(5) Identification of requirements for the remediation of any identified weaknesses in information systems and associated controls;

(6) Documentation and reporting regarding cybersecurity events and related incident response activities; and

(7) The evaluation and revision, as necessary, of the incident response plan following a cybersecurity event.

§431:A-I Annual certification to commissioner. (a) Each insurer domiciled in this State shall annually submit to the commissioner a written statement by February 15, certifying that the insurer is in compliance with the requirements set forth in sections 431:A-B through 431:A-I.

(b) Each insurer shall maintain all records, schedules, and data supporting this certificate for a period of five years for examination by the commissioner.

(c) To the extent an insurer has identified areas, systems, or processes that require material improvement, updating, or redesign, the insurer shall document the identification and the remedial efforts planned and underway to address those areas, systems, or processes. The documentation shall be available for inspection by the commissioner.

§431:A-J Investigation of a cybersecurity event. (a) If the licensee learns that a cybersecurity event has or may have occurred, the licensee, outside vendor, or service provider designated to act on behalf of the licensee shall conduct a prompt investigation.

(b) During the investigation, the licensee, outside vendor, or service provider designated to act on behalf of the licensee shall, at a minimum, determine as much of the following information as possible:

(1) Determine whether a cybersecurity event has occurred;

(2) Assess the nature and scope of the cybersecurity event;

(3) Identify any nonpublic information that may have been involved in the cybersecurity event; and

(4) Perform or oversee reasonable measures to restore the security of the information systems compromised in the cybersecurity event to prevent further unauthorized acquisition, release, or use of nonpublic information in the licensee's possession, custody, or control.

(c) If the licensee learns that a cybersecurity event has or may have occurred in a system maintained by a third-party service provider, the licensee will complete the steps listed in subsection (b) or confirm and document that the third-party service provider has completed those steps.

(d) The licensee shall maintain records concerning all cybersecurity events for a period of at least five years from the date of the cybersecurity event and shall produce those records upon demand of the commissioner.

§431:A-K Notification of a cybersecurity event. (a) Each licensee shall notify the commissioner as promptly as possible, but in no event later than seventy-two hours from a determination that a cybersecurity event has occurred, when either of the following criteria has been met:

(1) This State is the licensee's state of domicile, in the case of an insurer, or this State is the licensee's home state, in the case of a producer; or

(2) The licensee reasonably believes that the nonpublic information involved is of 250 or more consumers residing in this State and that is either of the following:

(A) A cybersecurity event impacting the licensee, in which notice is required to be provided to any government body, self-regulatory agency, or any other supervisory body pursuant to any state or federal law; or

(B) A cybersecurity event that has a reasonable likelihood of materially harming:

(i) Any consumer residing in this State; or

(ii) Any material part of the normal operation of the licensee.

(b) The licensee shall provide as much of the following information as possible:

(1) Date of the cybersecurity event;

(2) Description of how the information was exposed, lost, stolen, or breached, including the specific roles and responsibilities of third-party service providers, if any;

(3) How the cybersecurity event was discovered;

(4) Whether any lost, stolen, or breached information has been recovered and, if so, how this was done;

(5) The identity of the source of the cybersecurity event;

(6) Whether the licensee has filed a police report or has notified any regulatory, government, or law enforcement agencies and, if so, when the notification was provided;

(7) Description of the specific types of information acquired without authorization. "Specific types of information" means particular data elements, including, but not limited to, types of medical information, types of financial information, or types of information allowing identification of the consumer;

(8) The period during which the information system was compromised by the cybersecurity event;

(9) The number of total consumers in this State affected by the cybersecurity event. The licensee shall provide the best estimate in the initial report to the commissioner and update this estimate with each subsequent report to the commissioner pursuant to this section;

(10) The results of any internal review identifying a lapse in either automated controls or internal procedures, or confirming that all automated controls or internal procedures were followed;

(11) Description of efforts being undertaken to remediate the situation that permitted the cybersecurity event to occur;

(12) A copy of the licensee's privacy policy and a statement outlining the steps the licensee will take to investigate and notify consumers affected by the cybersecurity event; and

(13) Name of a contact person who is both familiar with the cybersecurity event and authorized to act for the licensee.

(d) The licensee shall have a continuing obligation to update and supplement initial and subsequent notifications to the commissioner concerning the cybersecurity event.

(e) This section shall not supersede any reporting requirements in chapter 487N.

§431:A-L Notification to consumers. The licensee shall comply with chapter 487N, as applicable, and provide a copy of the notice sent to consumers under that chapter to the commissioner when a licensee is required to notify the commissioner under section 431:A-K.

§431:A-M Notice regarding cybersecurity events of third-party service providers. (a) In the case of a cybersecurity event in a system maintained by a third-party service provider, of which the licensee has become aware, the licensee shall treat the event as it would under section 431:A-K.

(b) The computation of the licensee's deadlines shall begin on the day after the third-party service provider notifies the licensee of the cybersecurity event or the licensee otherwise has actual knowledge of the cybersecurity event, whichever is sooner.

(c) Nothing in this article shall prevent or abrogate an agreement between a licensee and another licensee, a third-party service provider, or any other party to fulfill any of the investigation requirements imposed under section 431:A-J or notice requirements imposed under sections 431:A-K through 431:A-O.

§431:A-N Notice regarding cybersecurity events of reinsures to insurers. (a) In the case of a cybersecurity event involving nonpublic information that is used by the licensee that is acting as an assuming insurer or in the possession, custody, or control of a licensee that is acting as an assuming insurer and that does not have a direct contractual relationship with the affected consumers, the assuming insurer shall notify its affected ceding insurers and the commissioner of its state of domicile within seventy-two hours of making the determination that a cybersecurity event has occurred.

(b) The ceding insurers that have a direct contractual relationship with affected consumers shall fulfill the consumer notification requirements imposed under chapter 487N and any other notification requirements relating to a cybersecurity event imposed under this article.

(c) In the case of a cybersecurity event involving nonpublic information that is in the possession, custody, or control of a third-party service provider of a licensee that is an assuming insurer, the assuming insurer shall notify its affected ceding insurers and the commissioner of its state of domicile within seventy-two hours of receiving notice from its third-party service provider that a cybersecurity event has occurred.

(d) The ceding insurers that have a direct contractual relationship with affected consumers shall fulfill the consumer notification requirements imposed under chapter 487N and any other notification requirements relating to a cybersecurity event imposed under this article.

§431:A-O Notice regarding cybersecurity events of insurers to producers of record. (a) In the case of a cybersecurity event involving nonpublic information that is in the possession, custody, or control of a licensee that is an insurer or its third-party service provider and for which a consumer accessed the insurer's services through an independent insurance producer, the insurer shall notify the producers of record of all affected consumers as soon as practicable as directed by the commissioner.

(b) The insurer is excused from this obligation in instances where it does not have the current producer of record information for any individual consumer.

§431:A-P Powers of the commissioner. (a) The commissioner shall have power to examine and investigate the affairs of any licensee to determine whether the licensee has been or is engaged in any conduct in violation of this article.

(b) This power is in addition to the powers that the commissioner has under section 431:2-208. Any investigation or examination shall be conducted pursuant to section 431:2-301.7.

(c) Whenever the commissioner has reason to believe that a licensee has been or is engaged in conduct in this State that violates this article, the commissioner may take action that is necessary or appropriate to enforce the provisions of this article.

§431:A-Q Confidentiality. (a) Any documents, materials, or other information in the control or possession of the commissioner that is furnished by a licensee, or an employee or agent thereof acting on behalf of the licensee pursuant to sections 431:A-I and 431:A-K(b)(2), (3), (4), (5), (8), (10), and (11), or that are obtained by the commissioner in an investigation or examination pursuant to section 431:A-P shall be confidential by law and privileged, shall not be subject to chapter 92F, shall not be subject to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil action. However, the commissioner is authorized to use the documents, materials, or other information in the furtherance of any regulatory or legal action brought as a part of the commissioner's duties.

(b) Neither the commissioner nor any person acting under the direction of the commissioner shall be permitted or required to testify in any private civil action concerning any confidential documents, materials, or information subject to subsection (a).

(1) May share documents, materials, or other information, including the confidential and privileged documents, materials, or information subject to subsection (a), with other state, federal, and international regulatory agencies, with the National Association of Insurance Commissioners, its affiliates or subsidiaries, and with state, federal, and international law enforcement authorities; provided that the recipient agrees in writing to maintain the confidentiality and privileged status of the document, material, or other information;

(2) May receive documents, materials, or information, including otherwise confidential and privileged documents, materials, or information, from the National Association of Insurance Commissioners, its affiliates or subsidiaries, and from regulatory and law enforcement officials of other foreign or domestic jurisdictions, and shall maintain as confidential or privileged any document, material, or information received with notice or the understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the document, material, or information;

(3) May share documents, materials, or other information subject to subsection (a), with a third-party consultant or vendor, provided that the consultant agrees in writing to maintain the confidentiality and privileged status of the document, material, or other information; and

(4) May enter into agreements governing sharing and use of information consistent with this subsection.

(d) No waiver of any applicable privilege or claim of confidentiality in the documents, materials, or information shall occur as a result of disclosure to the commissioner under this section or as a result of sharing as authorized in subsection (c).

(e) Nothing in this article shall prohibit the commissioner from releasing final adjudicated actions that are open to public inspection pursuant to chapter 92F to a database or other clearinghouse service maintained by the National Association of Insurance Commissioners, its affiliates, or subsidiaries.

§431:A-R Exceptions. (a) The following exceptions shall apply to this article:

(1) A licensee with fewer than ten employees, including any independent contractors, is exempt from sections 431:A-B through 431:A-I;

(2) A licensee subject to the Health Insurance Portability and Accountability Act of 1996 that has established and maintains an information security program pursuant to the statutes, rules, regulations, procedures, or guidelines established thereunder will be considered to have met the requirements of sections 431:A-B through 431:A-I; provided that the licensee is compliant with and submits a written statement certifying its compliance with the same;

(3) An employee, agent, representative, or designee of a licensee, who is also a licensee, is exempt from sections 431:A-B through 431:A-I and need not develop its own information security program to the extent that the employee, agent, representative, or designee is covered by the information security program of the other licensee.

(b) In the event that a licensee ceases to qualify for an exception, the licensee shall have 180 days to comply with this article.

§431:A-S Penalties. In the case of a violation of this article, a licensee may be penalized in accordance with section 431:2-203.

§431:A-T Private cause of action. This article may not be construed to create or imply a private cause of action for violation of its provisions, and it may not be construed to curtail a private cause of action that would otherwise exist in the absence of this article.

§431:A-U Rules. The commissioner may, in accordance with chapter 91, adopt rules as are necessary to carry out the provisions of this article."

SECTION 2. Section 431:19-115, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) No insurance laws of this State other than those contained in this article, article 15, or specifically referenced in this article shall apply to captive insurance companies; provided that:

(1) Sections 431:3-302 to 431:3-304.5, 431:3-307, 431:3-401 to 431:3-409, 431:3-411, 431:3-412, and 431:3-414; articles 1, 2, 4A, 5, 6, 9A, 9B, 9C, 11, [~~and~~] 11A[;], and 431:A; and chapter 431K shall apply to risk retention captive insurance companies; and

(2) Articles 1, 2, and 6 shall apply to class 5 companies."

SECTION 3. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 4. In codifying the new article and sections added to chapter 431, Hawaii Revised Statutes, by section 1 of this Act, the revisor of statutes shall substitute appropriate article and section numbers for the letters used in designating and referring to the new article and sections in this Act.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval; provided that licensees shall have one year from the effective date of this Act to implement sections 431:A-B through 431:A-I in section 1 of this Act, except that licensees shall have two years from the effective date of this Act to implement section 431:A-F in section 1 of this Act.

INTRODUCED BY:

_____________________________

BY REQUEST

HOUSE OF REPRESENTATIVES	H.B. NO.	946
THIRTY-FIRST LEGISLATURE, 2021
STATE OF HAWAII